The lovely catch 22 of living in the age of mass surveillance is that the NSA isn't even sure when it's illegally spying on you. To determine whether its activities are illegal, the NSA would have to conduct additional, also illegal surveillance. And so Americans are being illegally spied on, but no one knows how often this happens, why it happens, or how it happens.
Under Section 702 of the Foreign Intelligence Surveillance Act, the US is allowed to conduct surveillance on foreign nationals, but surveillance of "American persons" (citizens and Green Card holders) is illegal. The Snowden revelations showed that communications by Americans were regularly swept up regardless, and a court opinion from earlier this year confirmed that much of this collection was illegal and inappropriate.
For years, groups like the American Civil Liberties Union have demanded that the NSA produce figures about the number of Americans whose communications are inappropriately swept up in the NSA's bulk surveillance programs, and Congress has recently begun asking for similar figures. Don't expect to ever get them.
Wednesday, Director of National Intelligence Daniel Coats told the Senate Intelligence Committee that the NSA believes it is impossible to determine how often it is breaking the law.
"The NSA has made herculean, extensive efforts to devise a counting strategy that would be accurate and would respond to the question [about surveillance of US persons]," Coats said. "It remains infeasible to generate an exact, accurate, meaningful, and responsive methodology that can count how often a US person's communications may be collected under 702."
Coats said the reason it is so difficult is that, in order to determine if the NSA illegally spied on you, the NSA would have to illegally spy on you.
"To determine if communicants are US persons, NSA would be required to conduct significant further research trying to determine whether individuals who may be of no foreign intelligence interest are US persons," he said. "I would be asking trained NSA analysts to conduct intense identity verification research on potential US persons who are not targets of an investigation. From a privacy and civil liberties perspective I find this unpalatable."
Because Section 702 surveillance programs deal with vast amounts of data from many people all over the world, Coats is suggesting that identifying who shouldn't have been spied on would require drilling down to more granular data sets—an even more invasive spying than the original bulk surveillance.
This all means that the NSA has put itself between a rock and a hard place and is content to stay pinned there forever so long as its toys aren't taken away: Coats was testifying, after all, to urge Congress to reauthorize Section 702 without scaling it back.